REAL PROPERTY

PROPERTY ROAD MAP

1. Big Three Interests in Land 1. Estates giving possession 2. Easements giving right of use 3. Restrictive Covenants restricting someone elses use of their land 2. How do you get them, keep them, and transfer them 1. Adverse possession 2. Conveyancing 3. Recording 4. Security interests 3. What Comes with them 1. Rights of support 2. Water rights
ESTATES

1. Key Word Possession: An estate always has the right of possession. 1. Two Types of Estates: present estates and future interests 1. On the exam, you must be able to describe each, and identify
each.

2. Present Freehold Estates 1. Fee Simple Absolute 1. A fee simple absolute runs forever and is fully alienable. 2. Any attempt to put a direct restraint on alienation is VOID; ignore
the restriction

3. Conditions on the exercise of a fee simple are OK, but any

attempt to limit the right of transfer is void.

1. HYPO: John to Yoko, but if Yoko allows Paul on the

property during her lifetime, then to Sean. OK

4. A right of first refusal is NOT an invalid restraint on alienation. 1. HYPO: J to Y, but if Y tries to sell property during her
lifetime, Sean has right to first refusal. OK

5. Creation of Fee Simple 1. Courts will presume a fee simple unless language shows a
clear intent to create another estate.

2. Defeasible Fees 1. Fee Simple Determinable (and Possibility of Reverter) 1. Fee simple determinable terminates upon the happening of
a stated event and automatically reverts to the grantor.

2. Created by durational language for so long

as, while, or until.

3. **Watch Out Statements of motive or purpose do NOT

create a determinable fee (for the purpose of or to be used for). Must have words limiting the duration of the estate.

4. Correlative Future Interest in Grantor Possibility of

Reverter

2. Fee Simple Subject to Condition Subsequent (and Right of

Entry)

1. A fee simple subject to a condition subsequent is an estate

in which the grantor reserves the right to terminate the estate upon the happening of a state event

2. Grantor must expressly reserve the right of entry, or else

its not a fee simple subject to a condition subsequent.

3. Created by conditional language upon condition

that, provided that, but if, and if it happens that.

4. Correlative Future Interest in Grantor Right of Entry 3. Fee Simple Subject to an Executory Interest 1. If a fee simple estate terminate upon the happening of a
stated event and then passes to a third party rather than reverting back to the grantor or giving the grantor the right to terminate, the third person has an executory interest.

3. Life Estate 1. A life estate is never measure by time, but only measure by life 2. Can have a life estate by implication 1. HYPO: In his will, L left the ranch to A and B after the
death of my faithful wife C. This is an implied life estate.

3. Life Estate pur autre vie measuring life can be the life of
someone other than the life estate holder.

1. HYPO: TO A for the life of B. 2. If a life tenant dies before the measuring life dies, life
estate passes to the estate of the life tenant until the measuring life dies.

4. Forfeiture restrictions on life estates are OK. 1. HYPO: B to P for life, then to G, but if P tries to sell her life
estate that estate terminates and the property goes to G in fee simple.

5. Rights and Duties of Life Tenant WASTE 1. RULE - All the life tenant can do is maintain the estate,
and that means continuing the normal use of the land in its present condition.

1. If the tenant does more or less than maintain the

estate, the life tenant is guilty of waste.

2. Voluntary Waste any affirmative action beyond the right

of maintenance causing harm to the premises

1. Life tenant can only continue the normal use; any

change of use is voluntary waste, and life tenant is liable to the holder of the future interest.

2. **Watch Out Depletion of natural resources is

waste unless the normal use of the land was to deplete them

1. Called - Open Minds Doctrine 3. Permissive Waste where tenant has failed to
maintain (protect and preserve the land). Tenant must do

3 things:

1. Repair life tenant must keep property in repair,

but is only responsible for ordinary repairs, not replacement.

2. Taxes life tenant pays all taxes on the property. 1. **Watch Out holder of future interest must
make sure taxes get paid, b/c a tax sale terminates the future interest.

3. Interest life tenant pays any interest on any

mortgage (holder of future interest must pay the principal)

4. Limitation on life tenants liability for all three

above, life tenants obligation is limited to the amount of income received from the land, OR, if the life tenant using the property, the reasonable rental value of the land.

5. Insurance Life tenant does NOT have to insure

the property.

4. Ameliorative Waste a change that benefits the property

economically.

1. RULE if change conditions have made the

property relatively worthless in its current use, the life tenant can tear down w/o liability to the holder of the future interest.

6. Class Gifts 1. DEF gifts to a class of unnamed persons 2. RULE members of a class who predecease the T are
eliminated and do not recover; their gift lapses

1. Once the class is established when the will is

executed, the class stays open to accommodate those who later meet the definition of class member.

3. Future Interests 1. Preliminary Note

1. Future Interests = Future Possession. The interest exists NOW,

but possession will not come until later, if at all.

2. **Classification Rules 1. Overview 1. There are 5 future interests: 1. Category 1 those retained by Grantor estates
grantor keeps when grantor gives less than the full interest held by grantor:

1. Reversion 2. Possibility of Reverter 3. Right of Entry (Power of Termination) 2. Category 2- those given to grantee 1. Remainder 2. Executory Interest 2. Category 1: Future Interests Retained by Grantor 1. Reversion estate left in grantor who conveys less than
she owns

1. HYPO: O to A for life. Later A grants property to B

for life

1. O has a reversion, A has reversion for life, B

has life estate measured by both Bs and As lives.

2. TIP age of party in an estates question is almost

always irrelevant.

3. RAP reversion is NEVER subject to RAP. 4. Transferability freely transferable. 5. Grantor cannot keep reversion if grantor has given
away the full interest.

2. Possibility of Reverter when grantor conveys a fee

simple determinable he automatically retains a possibility of reverter.

1. Only and always goes w/ fee simple determinables. 2. RAP never subject to the RAP. 3. Key Language so long as, while, during, or

until.

3. Right of Entry (or Power of Termination) 1. When grantor gives a fee simple on a condition
subsequent, grantor keeps a right of entry.

2. *Title does not automatically go back to grantor if

the condition is violatedgrantor must exercise the right of entry.

3. Key Language provided, however, but if, or

upon condition that.

4. **Watch Out to get a fee simple on a condition

subsequent, grantor must expressly reserve a right of entry. Also, right of entry only exists with the grantor.

5. RAP not subject to RAP, but it cannot be

transferred inter vivos (transfer by will or by intestate succession at death is ok)

6. **Watch Out language for the purpose of has

no effect on title.

3. Category 2: Future Interests Given a Grantee 1. Remainder 1. Vested Remainder nothing stands in the way of
it becoming possessory on the expiration of the estate that comes before it.

1. HYPO: O to A for life, then to B and his

heirs.

1. B has vested remainder; O has

nothing.

2. Vested Remainder Subject to Open where the

remainder interest is to a class whose members are not yet fully known, the class remains open to allow for future persons who qualify as members of the class.

1. HYPO: O to A for life, then to As children.

At time of grant, A has 3 kids B, C, D.

1. O has nothing, A has life estate,

B/C/D have vested remainders subject to open.

3. Contingent Remainder something has to

happen or be known before the remainder can become possessory. 3 Situations:

1. Condition remainder is contingent if a

condition must be satisfied before grantee can be certain of possession.

2. Grantee Not in Existence if at time of

grant, grantee is not in existence, then that interest must be a contingent remainder grantees interest is contingent on grantee being born.

3. Identity of Exact Taker Unknown if you

cant identify, by name, the person who holds the remainder, then remainder is contingent until you can identify the taker.

4. Both vested and contingent remainders become

possessory, if at all, only upon the natural expiration of the estates coming before them.

2. Executory Interest 1. Operates to cut short the estate that comes before
it; it does NOT come into possession at the natural expiration of the earlier estate.

2. HYPO: O to A for life, then to B and his heirs; but if

at Bs death B is not survived by issue, then to C and her heirs.

1. B has vested remainder subject to an

executory interest; C has an executory interest

3. **Watch Out read the estates in order, and watch

for punctuation to see if a contingency is a part of the first estate given to a grantee, or a part of the

second.

4. Vested remainder subject to an executory interest

is sometimes called a vested remainder subject to total divestment or subject to an executory limit.

5. Holder of an executory interest cannot sue life

tenant for waste.

6. Shifting Executory Interest when an executory

interest operates by taking title from one grantee and giving it to another grantee

7. Springing Executory Interest when an

executory interest operates by taking title from the grantor and giving it to a grantee.

3. Class Gifts 1. Gifts to a class of unnamed persons 2. RULE members of a class who predecease the T are eliminated
and do not recover; their gift lapses

3. Once the class is established when the will is executed, the class
stays open to accommodate those who later meet the definition of class member.

4. Rule of Convenience class closes when any one of the class is

entitle to a distribution.

1. Only apply if grantor did not specify otherwise 4. Rule Against Perpetuities (RAP) 1 or 2 questions 1. RULE no interest in property is valid unless it must vest, if at all,
not later than 21 years after some life in being (measuring life) at the creation of the interest.

1. If there is any possibility that the interest might vest more

than 21 years after a life in being, the interest is void.

2. Applies to: contingent remainders, executory interest, and vested

remainders subject to open.

3. **Watch Out dont look for a particular person as the life in

being. Easy test for exam is to look at the facts and ask: could everyone alive at the time of the grant die, and 21 years pass, before the interest might vest? If so, its void.

4. HYPO: O to A and his heirs so long as no liquor is consumed on

the premises; and if liquor is consumed on the premises, title shall go to B and her heirs.

1. O nothing; A fee simple determinable subject to an

executory interest; B executory interest

2. BUT, after applying RAP 1. O possibility of reverter; A fee simple

determinable.

2. B/c RAP violated it may be generations before

liquor is consumed on the premises, which could be a time outside of any LIB + 21 years.

5. Note: Validity of a grant is determined at the time of creation and

it doesnt matter if the interest actually does vest w/in the time period of RAP.

1. HYPO: Same facts as above. Liquor was consumed 5

years after conveyance, so there is no vesting outside of RAP period.

1. Doesnt matter. 6. Perpetuity Saving Clause 1. Saves a grant from being voided by RAP by making sure
vesting must occur w/in the time period of the rule.

2. HYPO: Same facts as above, but it now states, during the

lifetime of A or B or within 21 years after the death of the survivor of A or B.

7. Options and rights of first refusal DO violated RAP, if they could

be exercised outside the time period.

8. Charity to Charity Exception RAP never violated if the gift over is

from one charity to another charity.

9. RAP and Class Gifts 2 Situations to look for: 1. Age contingency in an open class: watch for facts where
the class is open and the gift over is contingent on a class member reaching a certain age.

2. **Watch Out for fertile octogenarians. Anyone,

regardless of age, is capable of having children for

purposes of RAP.

3. RULE If RAP operates to void the gift over to ANY

member of the class b/c of the possibility that interest might vest outside the time period, then ALL members of the class lose, even those who already satisfy the condition and thus are already vested Bad as to one, bad as to all.

10. The Unborn Spouse watch for a gift following a widow or

widowers life estate, where the gift over cannot veest until the widow/widower dies.

1. HYPO: O to A for life, then to As widow for life, then to As

children who are then living.

1. A life estate; As widow contingent remainder;

As children contingent remainder

2. RAP does not void the gift over to As widow, but it

does void the gift over to As children b/c at time of grant, the woman who turns out to be As widow may not be born yet.

2. HYPO: O to A for life, then to As widow for life, then to As

children.

1. No RAP violation here. 2. Difference between these two hypos is that in the
first, the gift over could not vest until widow died; in the second, vesting occurs as soon as each child is born to A.

3. **Remember vesting is when the takers are

known an there is no condition that might keep them from taking.

11. **If transfer is by WILL, look at the situation as of time of

testators death; if by DEED, look at situation at time of deed.

1. HYPO: By will, O leaves Blackacre to Os widow for life,

then to Os children who are then living.

1. Unborn widow rule does not operate to void gift

over to Os children b/c a will operates on the death

of the testator, not when the will is executed.

4. Concurrent Ownership 1. Joint Tenancies 1. 2 characteristics: 1. Right of survivorship when one joint tenant dies, the
property is freed from her concurrent interest (survivors do not succeed to it)

2. Right to partition any JT can ask that the property be

partitioned: lines are drawn and the party is no longer a JT.

1. Can come by agreement of parties, or the court can

draw the lines.

2. If lines cannot be drawn, court can sell property and

divide proceeds

2. Creation of Joint Tenancy 1. Four Unities 1. Time all interest must have vested at the same
time

2. Title the grant to all JTs must be by the same

instrument

3. Interest all JTs must take the same kind and

same amount interest

4. Possession all must have identical rights of

possession

2. Language needed to create joint tenancy: Must clearly

make intent known, b/c if intent of the grantor is unclear, court construes the interest to be a tenancy in common.

1. Must have as joint tenants, with right of

survivorship, or in joint tenancy with right of survivorship.

3. Destruction of Joint Tenancy 2 ways: 1. Partition a voluntary destruction 2. Severance an involuntary destruction. Occurs whenever
any one of the four unities is disturbed. *4 ways to sever for exam:

1. Conveyance by one of the JTs. 1. One JTs transfer of interest creates a

severance that destroys just the sellers joint tenancy, turning it into a tenancy in common in the buyer, w/ the other JTs continuing to hold their interests in joint tenancy.

2. Mortgage in a title theory state 1. Lien Theory (majority) state NO

severance

2. Title Theory (minority) state Severance 3. Note: If no indication in question as to which

theory applies, assume lien theory.

3. Contract of Sale doctrine of equitable conversion

means severance occurs when K of sale is signed.

4. Creditor Sale of the interest in the JT. 1. No severance until the actual judicial sale A creditors judgment lien is not enough.

5. **These are THE ONLY ways to sever a joint

tenancy

2. Tenancies in Common 1. 2 Characteristics: 1. Right to Partition any one tenant in common can force it 2. NO Right of Survivorship 2. Only one unity is required: Possession all tenants must have
equal rights of possession.

3. Tenancy in common is a default tenancy if a JT isnt properly

created, its a tenancy in common.

5. Allocating Rights & Duties Between or Among Co-Tenants (Incidents of

Ownership)

1. 3 Aspects to consider: 1. Possession- each co-tenant has the right to possess all the
property consistent w/ the other co-tenants rights to also possess

it all.

1. Not a right to exclusive to possession 2. Accountability requirement that one co-tenant may have to
account to another for a share of profits the co-tenant received.

1. Getting an accounting means getting a share of the profits

from a co-tenant.

2. Gen Rule one co-tenant does NOT have to account to

another co-tenant for a share of the profits.

3. 4 Exceptions: 1. Ouster when one co-tenant is either keeping a

co-tenant off the property, or claiming a right to exclusive possession

2. Agreement to share 3. Lease of the property by co-tenant to a 3rd party 4. Depletion of natural resources 3. Contribution right of one co-tenant to force others to pay their
share of some expenditure co-tenant made.

1. Improvements NO (but, money spent may later be

recouped at partition or sale of property)

2. Repairs Yes, but only for necessary repairs 3. Mortgage payments Yes 4. Taxes Yes 6. Non-Freehold (Landlord-Tenant) Estates 1. Tenancy in Years 1. KEY PHRASE to remember is specified time does NOT have
to be for years.

2. Any estate measure by a fixed period of time, no matter how

short is a tenancy in years.

3. Statute of Frauds any tenancy for years over 1 year MUST be

in writing (one year oral is ok, one year and one day is not)

2. Periodic Tenancy 1. KEY WORD is Repeating an ongoing, continuing, repetitive

estate, until one party gives valid notice (month-to-month; year-toyear, etc.)

2. 3 Ways to Create: 1. Periodic tenancy by express agreement easy 2. Periodic tenancy by implication where lease is silent
as to its duration

1. If the lease does not specify how long it is to last,

then it is presumed to be a periodic tenancy measured by the rent payment (e.g., month-tomonth, if rent paid monthly)

3. Periodic tenancy by operation of law 2 situations: 1. Oral Lease violating Statute of Frauds 1. Acceptance of rent by landlord creates a
periodic tenancy by operation of law, even though the lease itself violates the S/F.

2. The period is to be determined by

the period covered by the rent check landlord accepted

2. Hold-Over tenant stays after expiration of lease,

then landlord accepts rent.

1. If hold-over sends check for another

periods rent, and L accepts it, there is a new periodic tenancy by operation of law.

2. Termination of periodic tenancy occurs by

giving proper notice. 2 requirements:

1. Time equal to the

period. Exception: if tenancy is year to year, 6 mos. required.

2. Right Effective Termination Day

last day of a period.

3. Tenancy at Will 1. Either party can terminate at any time, without notice 2. 5 other ways it terminates: 1. Death of either party 2. Waste by the tenant 3. Assignment by the tenant

4. Transfer of title by landlord 5. Lease by landlord to someone else. 4. Tenancy at Sufferance 1. Its the bare possession of a holdover T. At Ls sole option, L can
either:

1. Hold T as a wrongdoing trespasser and sue to throw T off

property and recover damages for the holdover; OR

2. Impose new periodic tenancy on T 1. For Residential Property new period will be
month-to-month

2. For Commercial Property new period is

determined as follows:

1. If old expired tenancy was for a year or

more, the new tenancy is year-to-year.

2. If old expired tenancy was for less than a

year, new tenancy is measured by the rent period of the old tenancy.

2. L cannot impose new tenancy on holdover T if it is

not reasonable.

1. Ex For holdover T of just a few hours, or if T was holding

over due to circumstances beyond Ts control, the L cannot impose new tenancy.

3. Raised Rent Situation: If L tells T of higher rent BEFORE

expiration of lease, and T holds over after expiration, L can impose the new periodic tenancy on the holdover T at the higher rent.

7. Duties of Landlord and Tenant 1. Tenants Duties 1. If the lease is silent on the Ts duties, T must: (1) pay rent, and
(2) not commit waste (cannot damages the lease premises).

2. If the lease says that T must repair and maintain then T is liable
for ALL damage to the property, including even ordinary wear and tear unless that is specifically excluded from the promise to repair.

3. Exception: T can terminate the lease if the premise is destroyed

without Ts fault.

2. Landlords Remedies 1. If T fails to pay rent, L can sue for both damages and to throw T
off the property (evict).

2. If T unjustifiably abandons the leasehold, L has 2 choices: 1. Treat abandonment as an offer to surrender and accept
the offer by retaking the premises; thus ending Ts liability as of that date.

2. Re-rent the premises on Ts account and hold T

liable for any deficiency (i.e., mitigation of Ts damages)

3. Landlords Duties 1. Duty to Deliver Possession of Premises - To give

T possession of the premises when the lease begins.

1. If L cannot give possession, L has breached 2. Implied Warranty of Habitability - To deliver residential premises in
a habitable condition

1. There is an implied warranty of

habitability in residential property: L must provide property that is reasonably suited for residential use.

2. If L breaches this implied warranty, then T has 4 options: 1. Terminate the lease; 2. Make repairs and offset the cost against future
rent;

3. Abate the rent to an amount equal to the fair rental

value in view of the defects; or

4. Remain in possession, pay full rent, and sue for

damages.

3. Quiet Enjoyment in every lease, there is an implied covenant

(promise) that L will not interfere w/ Ts quiet enjoyment and possession of the premises. This covenant is breached in 3 ways:

1. Total (Actual) Eviction L excludes T from

the entire lease premises. Actual eviction terminates Ts obligation to pay rent.

1. This terminates the lease

2. Partial Eviction occurs when T is physically excluded

from only part of the leased premises.

1. This relieves T from obligation to pay rent for

the entire premises

2. This does NOT terminate the lease 3. If partial eviction is by person besides L, but
someone w/ better title, Ts rent is apportioned to reflect rent taken away.

3. Constructive Eviction Where L fails to provide a service

L is supposed to provide, which renders the premises uninhabitable.

1. For T to be excused, 3 requirements must be met: 1. Result of Ls actions; 2. Substantial interference w/ covenant of
quiet enjoyment; and

3. T must vacate w/in a reasonable time.

ASSIGNMENTS AND SUBLEASES

1. Assignments 1. DEF when T transfers everything, holding nothing back. 2. Situation 1: Landlord sues Tenant: are successive tenants on a lease
liable to L?

1. A lease is both a conveyance and a contract, and these

are separate and independent grounds of liability<